On April 3, 2003, Petitioner was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Indictment alleged that: defendant herein, on or about October 23, 2001, in the County of Fresno, State and Eastern District of California, after having been previously convicted of Discharge of a Firearm at an Occupied Vehicle, in violation of California Penal Code Section 244, on or about July 9, 1993, in the Superior Court of California, County of Fresno, Case Number 486174-6; Felony Spousal Abuse, in violation of California Penal Code Section 273.5, on or about October 16, 1997, in the Superior Court of California, County of Fresno, Case Number 581888-5; and, Felony Battery on a Peace Officer, in violation of California Penal Code Section 243(c), on or about December 19, 1998, in the Superior Court of California, County of Fresno, Case Number 615118-7, crimes punishable by a term of imprisonment exceeding one year, did knowingly possess a firearm, to wit: a Jennings, model 38, .380 caliber semiautomatic pistol, and Winchester .380 caliber ammunition, in and affecting commerce, in that said firearm and ammunition had been shipped and transported in interstate and foreign commerce, in violation of Title 18, United States Code, Section 922(g)(1).

Petitioner initially was represented by Thomas J. Richardson. Anthony Capozzi was substituted as counsel of record on June 30, 2003. While represented by Mr. Capozzi, Petitioner pleaded guilty pursuant to a written Plea Agreement. The Plea Agreement provided:

The defendant also gives up any right he may have to bring a post-conviction attack on his conviction or sentence. He specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction or sentence.

The Plea Agreement specifically stated:

The defendant has read the charges against him contained in the Indictment in this case, and the charges have been fully explained to him by counsel. Further, the defendant fully understands the nature and elements of the crimes [sic] with which he has been charged, together with the possible defenses thereto, and has discussed them with counsel. The defendant understands that in order to prove him guilty of the charge of being a felon in possession of a firearm and ammunition, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly possessed a firearm or ammunition that had been shipped or transported from one state to another; and, Second, at the time the defendant possessed the firearm or ammunition, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year.

The factual basis for Petitioner's guilty plea was set forth in Exhibit A to the Plea Agreement:

On October 23, 2001, in the City of Fresno in the State and Eastern District of California, the defendant knowingly possessed a firearm, to wit: a Jennings, model 38, .380 caliber semiautomatic pistol, and Winchester .380 caliber ammunition, in and affecting commerce, in that the firearm and ammunition had been shipped and transported in interstate and foreign commerce.

At the time that he possessed the firearm and ammunition, the defendant had been previously convicted of Discharge of a Firearm at an Occupied Vehicle, in violation of California Penal Code Section 246, on or about July 8, 1993, in the Superior Court of California, County of Fresno, Case Number 486174-6; Felony Spousal Abuse, in violation of California Penal Code Section 273.5, on or about October 16, 1997, in the Superior Court of California, County of Fresno, Case Number 581888-5; and, Felony Battery on a Peace Officer, in violation of California Penal Code Section 243(c), on or about December 10, 1989, in the Superior Court of California, County of Fresno, Case Number 615118-7, all crimes punishable by a term of imprisonment exceeding one year.

During the change of plea colloquy before Judge Robert E. Coyle, Petitioner was placed under oath. In pertinent part, the following occurred:

THE COURT: Mr. Rice, would you please set forth the factual basis upon which the defendant is pleading?

MR. RICE: Yes, Your Honor. The elements that the government would have to prove in this case would be the defendant knowingly possessed a firearm or ammunition that had been shipped or transported from one state to another; and second, at the time the defendant possessed the firearm or ammunition, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year.

To prove these elements the government would introduce evidence that on October the 23rd, 2001, in the City of Fresno in the State and Eastern District of California, the defendant knowingly possessed a firearm, to wit: A Jennings, model 38, .380 caliber semiautomatic pistol, and Winchester 38 caliber ammunition, in and affecting commerce, in that the firearm and ammunition had been shipped and transported in interstate or foreign commerce.

At the time that he possessed the firearm and ammunition, he had previously been convicted of discharging a firearm at an occupied vehicle and violating the California Penal Code Section 246 on or about July the 8th, 1993 in the Superior Court of California, County of Fresno, case number 486174-6; felony spousal abuse, in violation of California Penal Code Section 273.5, on or about October the 16th, 1997 in the Superior Court of California, County of Fresno, case number 581888-5; and felony battery on a peace officer, in violation of California Penal Code Section 243(c), on or about December 10th, 1998, in the Superior Court of California, County of Fresno, case number 615118-7, all crimes punishable by a term of imprisonment exceeding one year.

THE COURT: Mr. Ceja, you understand that the government would have to prove all of those things as set forth by Mr. Rice beyond a reasonable doubt?

THE DEFENDANT: Yes.

THE COURT: And remember that you're under oath. Do you agree with all those facts as set forth by Mr. Rice as to what you're pleading guilty to?

THE DEFENDANT: Yes.

THE COURT: Ms. Clerk, please accept the plea.

MR. CAPOZZI: And judge for the record, if I may first. The U.S. Attorney and I have entered into an agreement that would allow us - this case and this sentence is dependent upon the number of convictions in the state court. We have pulled those files in the state court and we are now in the process of filing writs to set aside those convictions. Indeed, if just one is set aside, the mandatory minimum is no longer 15 years. We'll go by the guidelines. And indeed, if all three are set aside, the case would be dismissed.

The government has agreed to allow us the opportunity to follow-up with those motions in State court and allow us to continue out the sentence to give us the time to get that done. I just want to say that for the record.

MR. RICE: That's correct. Basically I've agreed to give Mr. Capozzi the time. The only place that the priors can be litigated at all is in State court because they're State court convictions. And Mr. Capozzi thinks that he has a good faith claim to set aside one of those priors. He'll have to bring it in State court. It would affect the sentence in the event that one were crossed out. But that's all that we're agreeing.

MR. CAPOZZI: We're pleading guilty.

THE COURT: All right. I understand. I just want to be sure I understood or the record is clear as to what the understanding is. Maybe I misunderstood you, Mr. Capozzi. My understanding of what you said is that if all of these are set aside, this case would be dismissed.

MR. CAPOZZI: I think the government would agree with that.

MR. RICE: That's correct. If the State court were to find that these were not valid prior convictions and dismiss all those cases, then the underlying felonies would go away.

THE COURT: All right. That's fine. I want to make sure we're all on the same path.

MR. CAPOZZI: That's correct.

THE COURT: All right.

THE CLERK: Shall I take the plea?

MR. CAPOZZI: Yeah.

After entry of Petitioner's guilty plea, but before sentencing, Roger Nuttall was substituted as counsel of record for Petitioner.

On November 7, 2005, Mr. Nuttall, on behalf of Petitioner, filed a motion to withdraw Petitioner's guilty plea on the ground that Petitioner was factually innocent of violating Section 922(g)(1). (Doc. 46).*fn1 In relevant part, the motion to withdraw the guilty plea asserted that "Current Counsel's investigation has discovered facts which were apparently known to both of Defendant's prior counsel, but which were previously unsubmitted to the court." Attached to the motion to withdraw the guilty plea was the Declaration of Salvador Ceja:

1. I know that Everardo Silva Ceja did not have knowledge that the .380 Caliber Jennings handgun and bulletproof vest in question were in the Grey Convertible Mustang on October 23, 2001;

2. Everardo and I (and others) periodically borrowed the Grey Convertible Mustang from its owner, for trips and special occasions;

3. When I borrowed the Mustang, I would not perform an inventory search of the vehicle for weapons and/or other illegal items;

4. On October 22, 2001, the night before Everardo's arrest, I had borrowed said Mustang, to entertain an acquaintance of mine;

5. Said items belonged to this acquaintance of mine, and were placed in said vehicle the night before, in my presence, by said acquaintance, and without Everardo's knowledge;

6. Said other individual and I were the only two people who knew that the handgun and vest were in the Grey Convertible Mustang, and we did not disclose this information to any other person, including Everardo.

7. I am willing to meet with the Government to disclose the identity of this acquaintance, who hid handgun and vest in the Mustang, and to whom said items belonged.

8. I told this information to both of Everardo's prior attorneys, Thomas Richardson and Anthony Capozzi.

Also attached to the motion to withdraw the guilty plea was Petitioner's declaration:

1. On October 23, 2001, I was peacefully arrested by the Fresno Police Department. Without incident, I was handcuffed and searched. The Police found the keys to a Grey Convertible Mustang, which I had driven to said location.

2. This Mustang was not my vehicle, and I had borrowed it that day, from its owner.

3. I did not perform an inventory search of this vehicle, and I was not aware that the car contained a hidden .380 Caliber Jennings handgun or bulletproof vest.

4. Without my consent or probable cause, the Police officers searched the vehicle. When the officers found said handgun, one of them exclaimed, 'Bingo, A nice beautiful .380.'

5. Afterwards, I questioned the officers about whether they were going to charge me with possession of this handgun. They asked, 'Are you referring to the .22 caliber pistol?' I responded, 'It's a .380,' because I had heard the officers describe it as such.

Mr. Nuttall contended that "these new facts, directly contradict the inference that Mr. Ceja possessed the requisite knowledge and intent needed to establish a sufficient nexus between the Defendant and the specific firearm involved in this case. (See, e.g., U.S. v. Pahulu, (D.Utah, 2003) 274 F.Supp.2d 1235, 1240.)"

In opposing the motion to withdraw the guilty plea, the United States presented investigation reports detailing the Government's evidence against Petitioner: that agents saw Petitioner, a wanted parolee, driving a car registered to his father, Salvador Ceja, and his Petitioner's girlfriend, Zulema Preciado; that agents saw Petitioner park the car at a restaurant; that agents saw Petitioner's ex-girlfriend get out of a Lincoln Navigator and meet Petitioner at his car; that an agent saw Petitioner take off a dark garment and place it behind the driver's seat; that an agent saw Petitioner remove an object from his waist and put it in the console area of his car; and that agents saw Petitioner and his ex-girlfriend enter the restaurant and then leave the restaurant and return to their vehicles. The agents then arrested Petitioner and found the keys to the vehicle in Petitioner's pocket. The agents found a loaded .380 caliber semiautomatic pistol between the driver's seat and console, a bullet proof vest behind the driver's seat, and scales and drug paraphernalia in the trunk. Petitioner asked the agents who is going to be charged; when an agent said the .22 caliber handgun, Petitioner spontaneously responded "that's a .380." Petitioner's ex-girlfriend told the agents that when she met Petitioner at his car, Petitioner took off the bullet proof vest and put it behind the driver's seat; that Petitioner had the gun tucked in the right side of the waist band of his pants; that she told Petitioner she did not want him to bring the gun into the restaurant and asked him why he wanted to bring it with him; that Petitioner told her that people were after him and owed him money; and that she saw Petitioner remove the gun from his waistband and place it between the driver's seat and the console. Attached to the Government's opposition is report prepared by the Fresno County District Attorney, Bureau of Investigations, Investigative Report executed by Investigator Tom Flanigan on August 29, 2002, which stated:

In regard to the 2001 Ford Mustang, Cal. Lic. #4TUJ279 (r/o Preciado, Zulema or Ceja, Salvador, 1194 E. San Ramon, Fresno, CA.), I was able to determine that registered owner Preciado was the defendants [sic] girlfriend, while Salvador Ceja is the defendants [sic] father. I was able to determine that Zulema Preciado had recently been residing at 5376 N. Valentine, #201, Fresno, however, she had recently moved to an unknown location in Sacramento. I was able to determine that Mr. Salvador Ceja works for Attorney Thomas J. Richardson at 2950 Mariposa Street in Fresno.

On 08/29/02, at 1300 hours, I contacted Mr. Salvador Ceja at his business address. I told Mr. Ceja that I wanted to ask him if his son (defendant Everardo) had permission to use the Mustang on 10/23/01, and also if Mr. Salvador Ceja had any knowledge of the stolen 380 pistol which was found in the Mustang. Mr. Salvador Ceja politely explained prior to talking to me that he wished to confir [sic] with his employer Mr. Richardson. I served Mr. Salvador Ceja with a subpoena regarding this case.

In the reply brief in support of the motion to withdraw the guilty plea, Mr. Nuttall submitted another declaration by Salvador Ceja:

1. That on or about August 29, 2002, I was contacted by Fresno County District Attorney Investigator Flanigan, who questioned me concerning the activity of my son, Everardo Silva Ceja, on or about October 23, 2001. Specifically, he asked me if I had knowledge of whether Everardo had permission to use the Mustang, and whether I had knowledge of the .380 pistol which had been found in said Mustang.

2. That on that date, August 29, 2002, I did have knowledge that Everardo did, have permission to use the Mustang on October 23, 2001;

3. That on August 29, 2002, I did have knowledge that the .380 caliber pistol, which was found in the Mustang, did not belong to Everardo, but in fact truly belonged to another person, who had left said pistol in the vehicle the night before;

4. That when Detective [sic] Flanigan interviewed me, I asked to continue the interview, so that I could confer with my employer, and Everardo's attorney, Thomas J. Richardson, Esq.;

5. That thereafter, I spoke with Mr. Richardson concerning these matters, and Mr. Richardson advised me that I should not disclose this information to Investigator Flanigan; and

6. That I have been willing to disclose this information to the government, and that I would have earlier disclosed this information, but for the advice of Mr. Richardson.

A hearing on this motion to withdraw Petitioner's guilty plea was held on November 22, 2005 at which the following occurred:

THE COURT: Have you now had sufficient time, Mr. Nuttall, to confer with your client and to enable him to determine what is in his best interests?

MR. NUTTALL: Yes, I have. Just for the record, Your Honor, I did, in that process, I made a request. Since I came in late in the case and made a request, actually yesterday, to Mr. Rice to - concerning certain aspects of the current charge that I was not clear about. And I appreciate, he was very responsive in light of the time frame here. And I received that today and spent some time with it. My advice to my client is that we withdraw the motion to withdraw the plea. He agrees with me. And so we do withdraw that motion.

THE COURT: All right. Mr. Ceja, have you heard the statements of your attorney, Mr. Nuttall?

THE DEFENDANT: Yes.

THE COURT: And have you had a chance to analyze this decision?

THE DEFENDANT: Yes.

THE COURT: And after having consulted with your attorney, do you agree with his action in determining that your motion to withdraw your guilty plea in this case - because I have said I would afford you a fair trial and I'm certainly willing to provide you with a jury trial, to determine whether or not these elements of the crime can be proved beyond a reasonable doubt - that it is in your best interest to proceed to withdraw that motion?

MRS. CEJA: First of all, judge, thank you very much for letting me speak. And second, I would like to ask you to give me an opportunity so that my son not be sentenced because, in fact, he is not guilty. He had no knowledge of the weapons that were in the car. First of all, the car was not his.

And the first attorney we had, we tried to explain that to him all the time, but he kept saying that that was not necessary. He said that that was not necessary, that he was going to take care of everything without the need to clarify things.

And also, please, I just don't want him to go before a jury because I just don't trust that system too much. And because first of all, we're Hispanics and he has been to the point where he was almost deported. And Mr. Thomas Richardson, we kept telling him that all the time. And that he was from here. And he just doesn't listen to that because every once in a while, he would ask us again, 'What place in Mexico was your son born?' And that just made no sense because we have known him for quite a while.

THE COURT: Your son was born in the United States and is a citizen of the United States.

MS. CEJA: Yes. And also, it's just that, well, I'd like you to know, well, it's not our fault. And I know you're not at fault either because the first attorney that we had for two years, he was not doing anything at all. He was just lying to us. We didn't discover that, you know, until two years afterwards. And then we hired the second attorney, Mr. Anthony Capozzi, and he said, well, I'll take care of everything in six or seven months.

And then it was almost a year. Time had gone by. And then we talked to him, you know, as to when he was going to take care of things. Only just a few days we're going to take care of things. And not until maybe another year went by and nothing was done. Not until we got this present attorney, the one who's helping us out right now.

And also this present attorney, we've told him that our son has nothing to do with it. That my son, that he's not guilty of this. That he didn't know anything about the gun or anything else that was in the car. That he -there's no reason that he should have to pay for something that he did not do because he didn't know anything about this.

And then - and then he said, well, he should plead guilty - the - Mr. Capozzi said that, he should, he said, and then I'll take care of everything. But now that he pled guilty, he's trapped. He's trapped into this and something - for something he did not do.

And I just don't want for it to be the case that maybe years later, we found out, okay, well, now it comes out that he was innocent because we know we have the evidence that he had nothing to do with this at all.

Because we've tried to prove it to the other two, the other two attorneys that we had, that the weapons, that he had nothing to do with that. Or anything to do with the car. He had nothing to do with that.

And then the attorney, Roger Nuttall, he is aware of all this and he did pay attention as far as all this. Although he did tell us from the beginning that he was very busy, but that he was going to try and help us as best he could.

And judge, I really appreciate your patience as well as the District Attorney's [sic] because I just don't want him to be sentenced. I don't want him to go to a jury - I mean, a trial before a jury because I just don't want that. Because in the future, if you find out that he's not guilty, also of all the other cases in the past, that way we were trying to avoid for him being sentenced to like 15 years in prison. We're trying to save him from all those things that he's facing.

If it's possible that it can be done. I believe it's in your hands. ...

THE COURT: I will explain to you what my understanding of the status of our proceedings are so that you will know what the law is.

I have offered to permit your son to have a trial before a jury and I guarantee you it will be a fair trial.

MRS. CEJA: Really, I just don't - I -truthfully, I just don't want that because what I have seen recently is that there's some that they have been convicted by juries and some that have even died and then it comes out later that they were innocent. I just don't want that.

THE COURT: I understand your concern. But I believe that our jury would be representative in this district. There would be Hispanic individuals on our jury. And we would have a fair trial.

The law concerning this matter of the agreement that your son has made with the government, and with regard to his prior convictions, is one that has to be addressed in the correct sequence. In other words, the correct legal steps must be taken to attack, if they can be legally attacked, his prior convictions and that is something that cannot start in this court. It has to start in the courts where your son was convicted originally. And those are state courts.

That is a different legal system from the United States justice system. You are now in a United States court. The choice in this court is either an agreement to accept responsibility and plead to the crime, reserving all other legal rights that exist, to try to attack the prior convictions and to show any other basis for upsetting the sentence that is recommended by the probation officer and seems to be called for under the law. Assuming the truth of the charges.

Otherwise, the alternative is to test the charges before a jury and to determine whether the elements of those charges can be proved beyond a reasonable doubt under the law. And that right is available to your son. And I will afford him that right and, again, I state to you that the trial will be fair.

And I can tell you that the prosecutor in this case is an honest and an honorable man. Your attorney is one of the best attorneys who appear in this court and has the ability, the wisdom, the experience to do his best for your son in this case.

And so he, meaning your son, does have the right and even though he's entered his plea, I think there are enough circumstances because it was a different attorney and because the analysis that was presented that I've seen in the lower courts does not include everything that Mr. Nuttall has now raised and apparently you and your son and others of your family have provided. But I can't comment on the merits of that because that isn't before me today to decide. My only alternative, as I have stated and I'll state them again so you can understand, is either we have a trial - Mr. Rice is ready to have a trial. He will bring the evidence he has and that evidence may be tested, may be challenged. And then we would have a jury decide the truth. Or, if, as Mr. Nuttall has stated, to lower the risk that your son faces because of the prior convictions and because of the nature of the offense charged in this case, he would have at least a finite exposure, meaning he would know what his sentence is going to be and then he can take the steps that the law provides he may take, through Mr. Nuttall, to try to affect that result by either overturning the State convictions or doing whatever else would be available. And I can't speak to that because I can't give legal advice.

But those are really the choices that are available unless Mr. Nuttall suggests something else. And I don't see any other alternatives. None have been suggested under the law. Do you understand what I've said? MRS. CEJA: Well, there are certain things that I need to understand and there are others that I would need mor time for my attorney - well, for the attorney to be able to take more time to explain to me. But also - but if you could give me more time, that maybe until after the first or, you know, after Christmas time, because, you know, that way we can really be more conscious as to what's going on. Because, you know, there's just so many things going on right now, you know, all these holidays that are coming up. That way we could know exactly what we're going to be doing.

THE COURT: Well, I don't know what else there is to -MR. NUTTALL: Let me, if I may, address. I think what - what needs to be addressed. If that would be all right.

THE COURT: Yes.

MR. NUTTALL: Your Honor, what they're talking about - and just so the record is clear. I appreciate the Court's comments here and listening so attentively to Mrs. Ceja. Much appreciated. We had talked - I'm aware - let me make it clear. For the record, we have withdrawn our motion to withdraw the plea. We're not seeking a trial. I appreciate the Court's indication that we can have one. My advice to my client is to proceed to sentencing. Ultimately, at the time of sentencing today, we're going to - I'd like to make a request that the Court actually, once sentence is imposed, stay imposition or execution or the transfer for 90 to 150 days so that we can facilitate the work that we need to do to collaterally attack the prior convictions without having to travel a great distance to do that. ...

THE COURT: I'd be willing to let Mr. Ceja stay here while you pursued the habeas remedies if the law permits it.

MR. NUTTALL: That would be fine. So I think with that, we can proceed. We can have a bit of time to work on that.

During the sentencing elocution, Petitioner stated:

THE DEFENDANT: I never signed for these 15 years. If Mr. Capozzi would have never promised me that he was going to get some of my priors -THE COURT: Set aside.

THE DEFENDANT: Yeah. Because if I was truly guilty, I would have accepted the four years in the state, of course, and I would have been home by now. So I didn't do that. And Mr. Capozzi told me don't worry about it, he'll have me out of here in six, seven months. And that's the only reason I signed for the 15.

THE COURT: All right. It sounds to me as if we don't have a voluntary plea.

MR. RICE: It doesn't matter to me. If he wants a trial, I'll give him a trial.

THE COURT: I'm - but I'm sufficiently concerned that I think we're just inviting catastrophe here, Mr. Nuttall. Mr. Ceja, you know, says he's not guilty, that he was in effect misled or simply did not understand Mr. Capozzi's advice. Mr. Capozzi - and it's being represented to me, and it's said in his declaration, that he would not face the sentence, the mandatory minimum 15 year sentence in this court that he is facing, and that he could - as I interpret it, the language of Mr. Capozzi, Mr. Ceja could be assured that one or more of the priors were going to be set aside. And that's the only reason he took this deal because he didn't think he'd be doing any time as his declaration says.

And so I think that under the totality of the circumstances, that I - I know that we're in the middle of sentencing, but I think we're going to have to go back to your motion to withdraw the plea because what I'm doing is I've heard these rounds [sic] stated again by your client. Now, Mr. Capozzi isn't here obviously, but I sense that we would be, I think, on legally firmer ground all around here if we try this case. I don't really see that we have an alternative.

THE DEFENDANT: I'm accepting the plea. I just want the chance for Mr. Nuttall to fight my State priors and have a chance to we can talk before I get transferred.

THE COURT: Well, I've already said as long as the law permits that, I'm -

THE DEFENDANT: That's all I want.

THE COURT: I'll permit you to stay here and -

THE DEFENDANT: I just don't want to have to get more than the 15 years.

THE COURT: I understand.

THE DEFENDANT: That's all I'm worried about.

MR. RICE: I guess that's really the problem. If he does go to trial, I will seek 27 to 34 years.

THE COURT: Right. That's understood. We all know that. But I just heard Mr. Ceja say that he's accepting the plea.

MR. NUTTALL: Yes.

THE COURT: And so I want to be - I want to be clear as to - because I don't want you to be in the position, Mr. Ceja, where you think that anybody's promised you anything and then you don't get it and your going to feel you've been betrayed.

THE DEFENDANT: Well, I feel ... confident that Mr. Nuttall is going to take care -THE COURT: He'll do the best he can. And he certainly is a competent attorney. He has the ability - if the law will support it and the facts support it, he has the ability to do the job.

All right. So you understand that if we go forward with the sentencing now today and you accept the plea, that that avenue is - unless the higher court says that there's a basis to set it aside or overturn it, that avenue will be foreclosed. You understand?

THE DEFENDANT: Yeah.

THE COURT: And are you willing to proceed today with sentencing? Is this your voluntary choice, having been fully informed by Mr. Nuttall as to the risks?

THE DEFENDANT: Yes.

THE COURT: All right. Do you wish to say anything else, Mr. Ceja?

THE DEFENDANT: That's it. Thank you. Both of you, Mr. Rice.

...

THE COURT: ... All right. Is there any legal cause why sentence should not now be pronounced?

MR. NUTTALL: - no, Your Honor. Petitioner was sentenced on November 22, 2005 to 180 months incarceration and a 60 month term of supervised release. By Orders filed on March 6, 2006, the transfer of Petitioner from the Fresno County Jail to a Federal Institution was stayed through April 28, 2006 while Petitioner's counsel collaterally attacked Petitioner's prior state convictions.

Petitioner appealed his conviction and sentence and the Ninth Circuit affirmed.*fn2

B. GROUNDS FOR SECTION 2255 MOTION.

As grounds for relief, Petitioner asserts:

B. Petitioner for the first time in this habeas corpus petition 28 U.S.C. § 2255 is attacking his plea to the 'possession' of a firearm charge on the ground that the plea was not supported by an adequate factual record. In this habeas corpus petitioner claims factual and legal innocence. In summary, petitioner posits that he was never informed by Judge Coyle, at the plea hearing, that it was an essential element of the offense that petitioner must have had knowledge of the presence of the weapon prior to or during the possession in order to satisfy the element of the offense.

C. Petitioner, therefore, argues that the hearing court did not adequately advise him of the exact nature of the § 924(e) charge, the guilty plea was not knowing and voluntary was required by due process, and the hearing court did not have a legally sufficient factual basis for accepting the guilty plea.

D. Petitioner was unaware of the presence of a weapon at any stage of which the offense conduct was based. His knowledge of the presence of the weapon was not until after his arrest. Petitioner in deciding to plead guilty did so with the (incorrect) understanding that he was guilty of the offense, by simply being in the borrowed vehicle that he was driving on the day of his arrest. Thus, he was pleading guilty and simultaneously denying culpability. The record will conclusively demonstrate same. (See Exhibit 'E' pg. 17 [Transcript of November 22, 2005 hearing on Petitioner's motion to withdraw guilty plea and sentencing]).

Petitioner contends that his guilty plea to possession of the firearm was not knowing, intelligent, and voluntary "because: (1) He was misinformed as to the factual basis for a § 924(e)(1) violation, and (2) He was hobbled by the ineffective assistance of counsel, Thomas J. Richardson and Anthony Capozzi during pretrial proceeding; during plea negotiations and at the plea hearing."

Petitioner's motion is supported by the Declaration of Salvador Ceja executed on December 12, 2008:

[O]n October 23, 2001 Everardo Silva Ceja did not had [sic] any knowledge that the .380 caliber Jennings handgun and bulletproof vest in question were in the Grey Convertible Ford Mustang he had borrowed in [sic] that day of his arrest. I Salvador Ceja and Efren Gayton had the gun in the car and we were the only two persons who knew about the gun in question being in the vehicle because Efren put it there on October 22, 2001 in my presence the night before Everardo's arrest because we were working together that evening. The night before Everardo's arrest

I, Salvador Ceja was driving the said Ford Mustang because I was performing a very, very dangerous investigation for the government and for that reason it was very important for our own safety to have the gun with us. I know that it is against the law to carry an unregistered weapon, but in this case I decided to take the risk to be punished by the law for carrying an unregistered gun rather than being murdered by those outlaws [sic] members of the Millenium [sic] Drug Cartel. Fortunately I was not punished, I was not murdered either, but yes, I was seriously hurt by the government for punishing a member of my family without having any fault. The investigation that I was performing for the government was regarding a homicide of four people in Chicago, Illinois in which Efren's brother Jose Luis Gayton who was also my godson was one of the victims who was brutally murdered there. I worked in this investigation for approximately 3 years until I discovered those who were the persons in charge in committing this horrible crime. The persons in charge were the most fearsome and bloodthirsty gunmen of the most dangerous drug cartel in Mexico. 'The Millenium [sic] Drug Cartel of the Valencia Brothers.' I gave this information to all three of Everardo's prior attorneys, Thomas J. Richardson, Anthony Capozzi and Mr. Roger T. Nuttall. At the evidentiary hearing I will take this same information to the judge but with all the proofs to demonstrate that what I declare here is true. Furthermore, I tried to speak with the prosecutor by means of Mr. Roger T. Nuttall to clarify as to who put the gun in the car in [sic] October 22 [sic], 2001, and who knew that the gun was there. Unfortunately all my attempts were useless because the prosecutor refused to speak to me because according to him I was not credible. I do not explain myself as to why the prosecutor could judge me before speaking with me. I cannot believe that he said that my declaration was lacking of [sic] credibility, without earlier knowing if it is truth or not about what I wanted to speak about. But at the evidentiary hearing I am going to present indisputable evidence to prove that my declaration does not lack credibility. Finally, I look forward to meeting with the prosecutor and or any government Agent of his choice for questioning regarding the gun in question from the October 23, 2201 incident in which an innocent person was wrongfully condemned for a crime that he did not commit. I am ready for any questioner. For more details with regard to my declaration you can contact FPD Detective Carlos Leal at (559) 696-1656 and, or [sic] FBI Agent Sunny Santiago at (559) 436-4474. They will provide the necessary evidence to show that my declaration is credible.

1. Failure to Comply with Rule 11

"To establish a violation of § 922(g)(1), the government must prove three elements beyond a reasonable doubt: (1) that the defendant was a convicted felon; (2) that the defendant was in knowing possession of a firearm; and (3) that the firearm was in or affecting interstate commerce." United States v. Beasley, 346 F.3d 930, 934 (9th Cir.2003), cert. denied, 542 U.S. 921 (2004). "To establish that a defendant acted 'knowingly,' the prosecution need not prove that the defendant knew that his possession of a firearm was unlawful; the prosecution need only prove that the defendant consciously possessed what he knew to be a firearm." Id.

Rule 11(b)(1)(G), Federal Rules of Criminal Procedure, provides that, during the change of plea colloquy, the Court must advise the defendant of "the nature of the charge to which the defendant is pleading." Rule 11(b)(3) requires that, "[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea."

"For a section 2255 movant to successfully challenge a guilty plea based upon a violation of Rule 11, he must establish that the violation amounted to a jurisdictional or constitutional error or that the violation resulted in a complete miscarriage of justice or in a proceeding inconsistent with the demands of fair procedure." United States v. Grewal, 825 F.2d 220, 222 (9th Cir.1987); United States v. Timmreck, 441 U.S. 780, 783-785 (1979)(technical violations of Rule 11 will not support collateral relief). "He must also establish that he was prejudiced in that he was unaware of the consequences of his plea, and, if properly advised, would not have pleaded guilty." Id.

Assuming arguendo that the Rule 11 colloquy did not satisfy the requirements of Rule 11(b)(1)(G) and (b)(3), Petitioner cannot establish that, had he known that knowing possession of a firearm required proof that he consciously possessed what he knew to be a firearm, he would not have pleaded guilty. Mr. Nuttall moved to withdraw the guilty plea based on Petitioner's contention that he did not know the weapon was in the vehicle, presented declarations in support of that contention, and that he was actually innocent of violating Section 922(g). The motion to withdraw the guilty plea was fully briefed and set for hearing. Petitioner withdrew the motion to withdraw the guilty plea despite repeated assurances from the United States and the Court that Petitioner could withdraw his guilty plea and proceed to trial. The Court twice offered the opportunity to Petitioner to proceed to trial based on his claim that he did not knowingly possess the firearm. At the sentencing hearing, Petitioner's mother again asserted that Petitioner did not know the gun was in the car and, again, the Court and the United States advised Petitioner he would then be allowed to withdraw the guilty plea and proceed to trial. Petitioner stated that he did not want to undergo the risk of trial and insisted on maintaining his guilty plea.

2. Ineffective Assistance of Counsel

Petitioner contends that he was denied the effective assistance of counsel because of counsel's failure to advise him that proof of knowing possession for purposes of Section 922(g) required proof that he consciously possessed what he knew to be a firearm.

To establish an ineffective assistance of counsel claim, Petitioner must show: (1) the representation was deficient, falling "below an objective standard of reasonableness"; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court need not evaluate both prongs of the Strickland test if the petitioner fails to establish one or the other. Strickland, id. at 697; Thomas v. Borg, 159 F.3d 1147, 1152 (9th Cir.1998), cert. denied, 526 U.S. 1055 (1999).

Under the first prong, Petitioner must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. "A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct of counsel's performance at the time." Id. at 689. The proper inquiry is whether, "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. The court must apply "a heavy measure of deference to counsel's judgments," and "must indulge a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance." Id. at 690-691. "The relevant inquiry under Strickland is not what defense counsel could have pursued, but rather whether the choices made by defense counsel were reasonable." Siripongs v. Calderon, 133 F.3d 732, 736 (9th Cir.1988). "The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel." Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.1989). A decision to waive an issue where there is little or no likelihood of success and concentrate on other issues is indicative of competence, not ineffectiveness. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir.1989). To meet the prejudice requirement, the petitioner must demonstrate that errors "actually had an adverse effect on the defense." Strickland, 466 U.S. at 693. "It is [also] not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. "Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding." Id. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. Where a petitioner enters a guilty plea upon the advice of counsel, the voluntariness of the plea depends upon whether the petitioner received effective assistance of counsel. In order to prevail on an ineffective assistance of counsel claim, "the [petitioner] must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 56-57 (1985).

Petitioner's claim of ineffective assistance of counsel fails on the prejudice prong. Petitioner cannot demonstrate that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Mr. Nuttall moved to withdraw the guilty plea based on Petitioner's contention that he did not know the weapon was in the vehicle, presented declarations in support of that contention, and argued that Petitioner was actually innocent of violating Section 922(g). The motion to withdraw the guilty plea was fully briefed and set for hearing. Counsel properly presented the facts that supported his alleged claim of actual innocence. Based on this proffer, the Court offered to set aside the plea and proceed to trial. Petitioner withdrew the motion to withdraw the guilty plea, despite repeated assurances from the United States and the Court that Petitioner's motion to withdraw his guilty plea would be granted and he could proceed to trial. At the sentencing hearing, Petitioner's mother again asserted that Petitioner did not know the gun was in the car and, again, the Court and the United States stated that Petitioner would be allowed to withdraw the guilty plea and proceed to trial. Petitioner then stated in open court that he accepted the guilty plea.*fn3

2. The Clerk of the Court is directed to ENTER JUDGMENT FOR RESPONDENT.

IT IS SO ORDERED.

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